This petition under section 482 of the Code of Criminal Procedure is directed against an order of February 11, 1983, made in a pending prosecution under Section 7 of the Essential Commodities Act, holding that there was sufficient ground to proceed against the petitioner on a charge of carrying on business as dealers in "edible oils" without a licence in contravention of clause (4) of the Delhi Edible Oils (Licensing and Control) Order 1977, for short, "the Delhi Order".

2. In a raid conducted by the officials of the Food and Supplies Department on the business premises of the petitioners on October 4, 1977, 470 tins of imported rapeseed oil containing 15 Kgs. 800 Gms rapeseed oil each and also bearing the lable of "imported rapeseed oil" were allegedly found "stored for sale". One of the tins was seized by the officials. The accused admittedly had no licence under clause (4) of the aforesaid order. A case was accordingly registered and put in Court.

3. Petitioner opposed framing of charge, inter alia, on the grounds that, on the material date, the Delhi Order stood superseded by the Pulses and Edible Oils (Storage Control) Order 1977, for short the Central Order, issued on September 30, 1977, Clause (3) whereof gave a grace period of 15 days from the date of coming into force of the clause to a dealer to obtain a licence and that in view of the said grace period the petitioners were entitleld to carry on business as dealers in edible oils without a licence and there was, therefore, no contravention. It was further urged that, in any event, by a Notification of October 14, 1977 clause (4) of the Central order had been amended to except from the operation of the Central Order edible oils "imported from abroad". A further contention was raised that in terms of the Government Circular of May 18, 1977, imported rapeseed oil and edible obtained by Solvent Extraction will be used for human consumption only "after refining and conforming to prescribed specification and that until such refining etc., it was not edible within the meaning of the Control Order, and that, therefore, neither the Delhi Order nor the Central Order applied in terms to the imported rapeseed oil, which was allegedly seized from the premises of the petitioners. Certain other contentions were also raised with which we are not concerned in the present proceedings. By an elaborate and a well-reasoned order, the trial Court dealt with and negatived the various contentions holding that there were sufficient grounds to proceed against the accused persons for the offence alleged and directed that the charge be framed against them accordingly. This is how the petitioners have come to this Court.

4. At the hearing of the petition, counsel, by and large, reiterated the contentions raised in the Court below. There is however, no substance in any of these contentions. The Delhi Order was issued on April, 19, 1977 under Section 3 of the Essential Commodities Act, 1955. Clause 2 (e) of the Order defines the expression "Edible Oil" as meaning "groundnut oil mustard oil, gingerly oil, cottonseed oil, til oil, taramira oil, rapeseed oil and coconut oil, whether refined or unrefined." Clause (4) of the order prohibits carrying on of business as a dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority under the Order. In terms of this order rapeseed oil "whether refined or unrefined", whether imported or otherwise, was within the regulation of the order and a dealer required a licence to carry on business in edible oil. The expression Dealer "is denned by Clause 3 (a) of the order to mean "a person engaged in the business of purchase, sale or storage, for sale of edible oils and includes producer thereof." Petitioners admittedly had not obtained any licence under this Order on October 4, 1977 when the raid was conducted, although it is claimed that the petitioners had applied for such a licence on that day itself. True, the Central Order was made on September 30, 1977. Clauses (3), (4) and (6) of this order are in the following terms: -

"3. Licencing of dealers : Notwithstanding anything contained in any state Order, after the expiration of the period of fifteen days from the coming into force of this clause, no person shall carry on business as a dealer in pulses or in edible oils except under and in accordance with the terms and conditions of a licence granted under a state order if the stocks of pulses or edible oils in his possession exceeds the quantities specified below :-

4. Restriction on possession of pulses and edible oil: -

No dealer shall, after a period of fifteen days from the coming into force of this clause, either by himself or by any person on his behalf, store or have in his possession of any time any pulses or edible oils in excess of the quantities specified below: -

6. State Orders not to apply: -

The provision of any state order relating to the storage of any pulses or edible oils shall not apply in respect of any matter for which provision has been specifically made in this order."

The Order further provides that clauses (3) and (5) of the Order shall come into force on the 10th day of October, 1977 and the remaining provisions of the order shall come into force at once.

Subsequently, clause (4) of the Central Order was amended by a Notification of October 14, 1977 and this is how Clause (2) of the amending Notification runs: -

"(2) In clause 4 of the Pulses and Edible Oils (Storage Control) Order, 1977, in the tabular portion, in the entries relating to "(ii) Edible oils including vanaspati" in the column under the heading "wholesaler" for the brackets and words "(For all edible oils, excluding vanaspati taken together)" except those imported from abroad and Vanaspati, taken together)."

On May 18, 1977, Government issued the following circulars: -

"The Secretary, Central Committee for Food Standards, has advised all Port Health Officers and all Public Analysts in his Circular letter No. P. 15011/19/17-PH (F&N) (PFA) dated 18th May 1977 that imported Rapeseed Oil and Palm Oil obtained by method of expression and 11 Edible Oils obtained by Solvent Extraction will be used for human consumption only after refining and conforming to prescribed specifications. He has further advised that the raw oils not conforming to the limits in respect of moisture content or F.F.A. may be released for refining".

While there is no doubt that in terms of Clause (6) of the Central Order the provision of the State Order relating to "storage" of any edible oils shall not apply in respect of any matter for which provisions had been specifically made in the Central Order, Clause (4) of the Delhi Order is, however, beyond the reach of clause (6) of the Central Order because clause (4) of the Delhi Order does not deal with "storage". It deals with licensing of dealers to carry on business, and mere storage does not amount to carrying on business. It is storage for sale that alone constitutes carrying on business. If storage is beyond a specified quantity there is a presumption that it is storage for sale. This is what clause (4) of the This is what clause (4) of the Delhi Order stipulates. This presumption is also rebuttable. But that apart, the Central Order superseded the State Order only when the inconsistent provision of the Central Order comes into effect. Clause (3) of the Central Order which deals with licensing of dealers, a subject which was dealt with by cl. (4) of the Delhi Order, did not come into force on September 30, 1977 but came into force on October 10, 1977, and this is what clause 1(3) of the Order provides, with the result that until then Clause (4) of the Delhi Order continued to operate. The result, therefore, has been that on October 4, 1977, when the raid was conducted, clause (3) of the Central Order had been kept in abeyance until October 10, 1977 and Clause (4) of the Delhi Order, therefore, continued to be effective in the absence of any inconsistency in relation to licensing between the Central and the State Orders. The claim of the petitioners for the benefit of the grace period allowed by Clause (3) of the Central Order is, therefore, clearly misconceived and assumes a vacuum from the date of the Central Order to the date on which clause (3) came into force, ignoring that during this period of Clause (4) of the Delhi Order continued to be effective and legitimately regulated the licensing of dealers to carry on business in edible oils. True, all varieties of rapeseed oil may not be edible and the Government Circular of May 18, 1977, specifies that rapeseed oil obtained by Solvent Extractions will be used for human consumption only after "refining and conforming to prescribed specifications". But this would not be of any help to the petitioners either. If Clause (4) of the Delhi Order continued to operate on the date of the raid so would the definition of the term "edible oil" in the Delhi Order which is wide enough to include rapeseed oil. "Whether refined or unrefined" and this definition makes no distinction if it is imported or otherwise. It would, however, be open to the petitioners to contend at the trial, for whatever it may be worth, that it was the non-edible variety which was seized and, if necessary, to produce evidence to that effect in defence.

5. It must, however, be pointed out that Clause (4) of the Central Order came into force at once i.e., on September 30, 1977 and was, therefore, in force on the date of the raid Clause (4) however, deals merely with possession and is not concerned with "carrying on business". The petitioners are charged with storage for sale i.e. carrying on business in contravention of clause (4) of the Delhi Order. It would, however, be open to the petitioner to contend at the trial that they were merely found in "possession" of rapeseed oil and that they were not "carrying on business" on the material date and that mere possession of such oil on October 4, 1977 was not an offence by virtue of this act that clause (4) of the Central Order gave a clear 15 days time to reduce the quantity in possession of a dealer. It is neither proper not necessary to rule on such a contention at this State.

6. In raising these contentions, at the preliminary stage of the trial in the Court below and in this Court, the petitioners ran an obvious risk in inviting a possible adverse construction of the Delhi and Central Orders and their interactions. The Court below, which dealt with the questions, and in my view admirably well, had to rule on the questions raised. This Court likewise dealt with the questions in its own way ruling on the questions. The decision of these questions at this stage were, however, merely intended to determine if charge should be framed against the petitioners. The trial Court would, therefore, be entitled, as indeed, bound to consider the various questions in controversy at the trial in accordance with law uninfluenced by any expression of opinion on the merits by either of the Courts.

7. The petition fails and is accordingly dismissed.

Petition dismissed.